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Ignorance is a demon which will yet be the cause of many tragedies

Coordination of Democratic Rights Organisations denounces Government of India and its Law officer for being parsimonious in their espousal of wisdom. Ignorance of law is not counted as an excuse or exonerates a citizen from being prosecuted for commission of a crime. But alarm bells must be sounded when the highest legal officer of Government of India, who is meant to uphold law, the Attorney General Mukul Rohatgi expresses his ignorance of law, if not deliberately ignores law and defends Army's use of human shield in Kashmir as "peculiar situation requires peculiar measures". His statement is not only offensive but shows reckless disregard for lawless acts directed against civilians and then justifies it by using spurious arguments which amount to utter contempt for the Constitution. To argue, as the AG did, that using human shield was "a smart thing" to do or even the practical thing to do, for which the Army should be praised, is actually to gloss over a cowardly and criminal act. He is also prejudicing the investigation now that a FIR has been registered against the Major and other personnel of 53 Rashtriya Rifles and the Army itself has ordered an internal enquiry. And needless to add has lent a helping hand to those whipping up hysteria against Kashmiri Muslims and baying for their blood.

Arguably, Government of India denies presence of any armed conflict anywhere in India and insists that Rule of Law operates even in the “Disturbed” areas, when in fact the armed forces of the Union of India enjoy legal impunity from criminal prosecution in such areas. Now the fact is that if Rule of Law indeed prevails in J&K then pre-eminence of Article 21 (Right to life and liberty) of the Constitution cannot be side-stepped. Using non – combatants as human shield amounts to torture and cruel and inhumane treatment of citizens goes against the very spirit of Article 21.

If, however, legal immunity for armed forces in “Disturbed” area is quintessential sign of presence of armed conflict then Rules of War come into play, even if Government of India refuses to accept this, because it is a signatory to Geneva Convention 1949. Under Rule of War, the use of civilians as human shield is prohibited and considered a war crime. Article 13(2) of the Additional Protocol II (1977), Geneva Convention lays down that "The civilian population as such as well as individual civilians shall not be the object or attack. Acts or threats of violence the prime purpose of which is to spread terror among civilian population are prohibited". Furthermore, International Criminal Court under its statute outlaws "Utilising the presence of a civilian...to render certain points, areas or military forces immune from military operations" as per Article 8 (2)(b)(xxiii).

It is also to be noted that the actions of the Indian Armed Forces are in direct contravention to the International Human Rights Law as using civilians as military objects violates the jus cogens norms of protection against torture and right to life. Though, India hasn’t ratified the Convention Against Torture (CAT), it is bound by the customary international law and isn’t permitted to infringe the same.

The fact that Government of India is in willful violation of international humanitarian laws, however, comes as no surprise. Because, neither Rule of Law nor Rule of War governs the conduct of the armed forces in the areas declared as “Disturbed”. Fact of the matter is that AG in a related matter of fake encounters in Manipur before the Supreme Court told the bench comprising Justice Lokur and Justice Lalit on April 20 that “Military operations cannot be dissected in a particular way. Army cannot be subjected to FIR otherwise military operations cannot be carried out”. And went on to argue that “(w)hether it’s J&K or Manipur, we are facing the same local bias”. In other words, the AG has expressed his lack of confidence in elected state Governments and local administration. So what is apparent is that a policy of carte blanche is advocated for the armed forces and they are being encouraged to do whatever it takes to bring the situation under control, never mind how many laws are broken and how many civilian lives put to risk.

Let us note that Indian Government has been lobbying hard for India to become permanent member of UN Security Council. If they display the same cavalier attitude towards international humanitarian laws as the existing five permanent members do and believe in conducting war any which way they please it would be a disaster not just for us Indians but for the world community as well. Therefore, enlightened self-interest demands that the Government be made to pull back from its lawless military suppression and instead of chasing ‘windmills’ acknowledge that they have lost the consent of overwhelming majority of the people of Kashmir. It is this that needs addressing, which no defense of war crimes of the Indian armed forces can supplant. Sadly, the Government and its Law Officer believe in ‘ignorance is bliss” and deliberately scuttle any attempt to raise uncomfortable questions and address the hard political issues.

CDRO appeals to conscientious Indians to denounce the Government of India and its Law Officer for condoning heinous crimes and to pressure them to give up the policy of military suppression and initiate serious and purposeful political dialogue with the political leadership of the Azaadi Movement.